C (A Child)

A shared residence order is not confined to cases where parents agree, the child understands the arrangement, or the parents are deadlocked. Exceptional circumstances or a demonstrable positive benefit are not prerequisites. The decision is a practical, welfare-based exercise. Trial judges may choose shared residence where the circumstances and daily reality support it and it accords with the child’s paramount welfare. Relevant considerations include the child’s relationships with both parents, the proximity and usability of the homes and school, the child’s sense of belonging in each home, and any established pattern of shared care. A judge departing from objective or expert evidence must explain the decision carefully and fully.

Following the breakdown of the parents’ marriage, the child lived mainly with his mother in Bradford while his father worked and lived in York. Contact took place at alternate weekends and during the week. After the father moved close to Bradford, he sought additional school-term nights and a shared residence order. HHJ Ibbotson rejected both applications, reasoning that shared residence was appropriate only in two specified categories and that increased time would confuse the child.

Permission to appeal was granted after Wilson LJ considered that the grounds disclosed arguable errors of law and fact. The appeal concerned the judge’s treatment of the school and CAFCASS evidence, the legal approach to shared residence, and whether the Court of Appeal should exercise its own discretion or order a retrial.

1. Appeal allowed. The Court of Appeal held that the judge’s conclusions on both increased school-term contact and shared residence could not stand. As both parties opposed a retrial, the court exercised its independent discretion and made the orders sought by the father.
2. Evidence. The judge had materially understated the school’s evidence and failed to address the CAFCASS officer’s oral evidence, which was more positive than her written report. The judge was required to explain carefully and fully any departure from those views. The conclusion that increased time would confuse the child was unsupported apart from the mother’s evidence, while the objective and expert evidence pointed the other way.
3. Shared residence. The judge’s categorisation of the authorities was legally wrong. The recent authorities, including D v D [2001] 1 FLR 495, Re A [2003] 3 FCR 656, Re F [2003] FLR 397, Re G [2005] 2 FLR 957 and A v A [2004] 1 FLR 1195, did not restrict shared residence orders to cases of parental agreement or deadlock. No exceptional circumstances or positive benefit were required. The question was whether the arrangement was supported by the circumstances and reality of the case and was consistent with the child’s welfare.
4. Application. The child was attached to and confident with both parents, the homes and school were close, he belonged in both homes, perceived himself as having two homes, moved readily between them, and had an existing history of shared care. Their cumulative effect made this a paradigm case for shared residence. Wall LJ added that the order reflected the child’s day-to-day reality and the parents’ joint and equal parental responsibility. It was neither a diminution of the mother’s role nor a victory for the father, although cooperation would assist its operation.

1. Court of Appeal (Civil Division): [2006] EWCA Civ 235, 18 January 2006. Allowed the appeal, exercised its own discretion, increased the father’s school-term contact and made a shared residence order.
2. Bradford County Court (HHJ Ibbotson): reserved judgment spoken on 22 July 2005. Rejected the application for a shared residence order and declined to increase the child’s school-term stays with his father.